DIPLOMATS SPEAK OUT ON REFERENDUM PROCESS -- AND

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 004080

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: DECL: 09/29/2015
TAGS: PGOV PREL PHUM PINS KDEM KE
SUBJECT: DIPLOMATS SPEAK OUT ON REFERENDUM PROCESS -- AND
RUFFLE GOVERNMENT FEATHERS

REF: A. (A) NAIROBI 3988

B. (B) NAIROBI 3982

Classified By: Political Counselor Michael J. Fitzpatrick; Reasons: 1.4
(b,d)


1. (U) SUMMARY: Ambassador joined several other chiefs of
mission in a September 28 meeting with Electoral Commission
of Kenya (ECK) Chairman to discuss the ECK,s efforts (and
difficulties) to supervise November's referendum on the new
draft constitution. Following the meeting, the envoys
released a press statement condemning the recent violence
surrounding the referendum campaigns and encouraging both
sides to ensure a free and fair referendum. The statement --
signed onto by 26 resident diplomatic missions --
surprisingly elicited a negative response from the Ministry
of Foreign Affairs, which implied that the envoys had
exhibited partisanship in the constitutional debate. END
SUMMARY.

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Welcomed Support for a Beleaguered ECK
--------------


2. (C) A half-dozen diplomatic envoys -- Ambassador Bellamy
plus Ambassadors or Charges from Switzerland, Canada,
Denmark, UK, and Norway -- met with besieged ECK Chairman
Samuel Kivuitu September 28. The purpose: to lend support to
the ECK and its mission to conduct voter education and to
oversee the planned Novermber 21 referendum on the proposed
new constitution. Kivuitu has come under increasing
pressure, with some politicians even calling for his
resignation, after he admonished both sides in the
constitutional debate for their campaigning activities in
violation of the timetable for the referendum established by
the ECK. Kivuitu has also sharply and publicly criticized
Justice Minister Kiraitu Murungi,s directive to civil
servants to support the new constitution and his announcement
that government resources could and would be used to fund the
"Yes" campaign (ref A).


3. (C) The meeting served to re-affirm the work of the ECK
and emphasized the international community,s desire for a
transparent, free, and non-violent referendum process.
During the meeting, Kivuitu described the "Yes" and "No"
camps as amorphous and pointed to a lack of identifiable
interlocutors for both campaigns as complicating the ECK,s
ability to oversee the referendum. The Referendum Code of
Conduct requires both sides to establish national and
constituency level referendum committees to work with the
ECK. These committees will help ensure that the campaign is
conducted in an orderly and transparent manner, but neither
side has yet produced the necessary teams.


4. (C) Kivuitu again expressed concern that the referendum
campaigning had begun before civic education started.
Kivuitu also emphasized the need to swiftly establish peace
committees to mitigate the threat of violence. He lamented
the lack of power of the ECK to punish violations of various
election laws. The Attorney General, police, and internal
security services should be enforcing the Election Offences
Act and Electoral Law, but enforcement thus far has been lax
and/or inconsistent. Kivuitu thought it vital that the ECK,
the AG, police, and "Yes" and "No" committees meet to
establish coordination mechanisms. The Government, in
response to such appeals, has been sending only low-level
officials.


5. (C) Kivuitu shared a press statement he issued September
23, in which he cited the Constitution of Kenya Review
(Amendment) Act of 2004 to support his interpretation that
the draft constitution could not, by law, be a government
project. He also told the assembled envoys in the meeting
that use of government employees in the campaign would
violate the Public Officers Ethics Act.


6. (C) Kivuitu is concerned that the Government may intend
simply to push the new constitution through by any means,
regardless of law, regulations, or past precedents. He
expressed his appreciation for the international community's
support and interest in the referendum process, noting that
such support had been vital to the success of the 2002
elections (which he also oversaw). He announced that the
envoys, show of support "gives me courage to continue" and
urged the envoys to pressure the Governmet to adhere to the
electoral standards.

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The International Community Speaks Out
--------------


7. (U) Following the meeting with Kivuitu, the envoys
(minus Kivuitu) were joined by a number of other donor nation
representatives to release a statement at a specially
convened press conference at a downtown hotel (full text of
statement at para 9 below). The statement emphasized the
international community's neutral stance on the content of
the constitution, condemned violence and the inappropriate
use of public resources for the referendum campaigns, and
emphasized the importance of a free and fair referendum.
Copies of the statement were sent to the Office of the
President and the leader of the official opposition, along
with a diplomatic note expressing the desire to meet with
both sides to discuss the issue.


8. (U) On September 29, the Canadian High Commission
received a rather stilted diplomatic note from the Ministry
of Foreign Affairs admonishing the envoys and accussing them
of circumventing international customary law by releasing a
statement to the media rather than pursuing diplomatic
channels. (NOTE: Despite repeated requests since August, the
Government has yet to brief the diplomatic community on its
YES campaign, END NOTE.) The note also asserted that the
diplomatic community is "obliged to refrain from taking sides
publicly on such a matter of national importance." The
Canadian request to meet with President Kibaki to discuss the
issues raised in the statement was summarily denied.


9. (U) Text of Press Statement issued September 28 in
Nairobi (BEGIN TEXT):

We, the undersigned Heads of Mission based in Nairobi, wish
to take this opportunity to clarify our position with regard
to the Constitution Bill and forthcoming referendum. We have
consistently stated that the content of the Constitution Bill
is a matter solely for the people of Kenya. The international
community,s role has been to encourage a constitution that
commands the support of the clear majority of the Kenyan
people.

We condemn the violence witnessed to date. We expect a
process that is informative, free, transparent and peaceful;
that permits freedom of press and association, and respect
for human rights; that is not marred by violence or its
incitement, physical intimidation or financial manipulation.

We note that the Electoral Commission of Kenya has been
mandated to oversee voter education and the referendum. We
look to all political leaders and party executives to ensure
party members and political supporters adhere to the
Referendum Code of Conduct. We expect members of Government
and Government officials to refrain from any inappropriate
use of public resources for political purposes, in accordance
with the Public Officers Ethics Act.

We will follow the process closely in the spirit of
partnership that has characterised our support for Kenya.

(signed)
Canada, European Union members represented in Kenya (Austria,
Belgium, Cyprus, the Czech Republic, Denmark, the European
Commission Delegation, Finland, France, Germany, Greece,
Hungary, Italy, the Netherlands, Poland, Portugal, Romania,
Slovakia, Spain, Sweden, and the United Kingdom),Japan,
Norway, Switzerland, Turkey, and the United States of America.
(END TEXT.)
BELLAMY